IN THE NATIONAL INDUSTRIAL COURT OF NIGERIA

IN THE LAGOS JUDICIAL DIVISION

HOLDEN AT LAGOS

BEFORE HIS LORDSHIP HON JUSTICE A.N UBAKA

 

DATED 25TH OCTOBER, 2018   Suit No: NICN/LA/05/2016

 

BETWEEN

 

MTN NIGERIA COMMUNICATIONS LIMITED       APPLICANT

 

AND 

 

MR THEODORE NWABUEZE IKPA               RESPONDENT  

                              

 

REPRESENTATION:

Solomon Mbadiwe and Anne Abyem for the Applicant

A. Adedoyin-Adeniyi with Adeyemi Ogunremi for the Respondent.

 

RULING

Judgment was entered in this case against the Applicant on 13th June, 2018 as follows:

 

The claimant’s employment was validly terminated,

 Relief 2 & 3 fail as the claimant was not retired; they are accordingly dismissed. 

The defendant is to pay the claimant the sum of N5, 101, 674 as compensation. 

All sums are to be paid within 30 days failing which it will attract interest of 15% per annum.

I award the sum of N100, 000 as cost to be paid by the defendant to the claimant. 

The Applicant on the 12th July, 2018 filed a Motion on Notice praying for the following:

An order of this honourable court granting stay of execution of the judgment of this honourable court delivered on 13th day of June, 2018 (the Judgment) pending the hearing and determination of the appeal filed by the applicant at the court of appeal.

And for such further or other orders as the honourable court may deem fit to make in the circumstances.

 

The grounds for the Application are: 

 

This honourable court delivered judgment in this suit on 13th June, 2018 wherein it ordered that:

 

The defendant is to pay the claimant the sum of N5, 101, 674 as compensation 

All sums are to be paid within 30days failing which it will attract interest at 15% per annum.

 

The applicant being dissatisfied with the judgment has through its application for leave to appeal (to which is exhibited a proposed notice and grounds of appeal) dated 11th July, 2018 filed an appeal to the court of appeal on the grounds that:

 

The learned trial judge erred in law when he adjudicated over the respondent’s alternative claim for compensation for restraint of trade whereas the respondent lacked locus standi to pursue that claim.

The learned trial judge erred in law when he held that clause 17.3.4 in the respondent’s contract of employment was unreasonable as a contract in restraint of trade despite the special circumstances of the particular case.

The learned trial judge erred in law and on the facts when he awarded compensation for restraint of trade whereas the respondent did not prove any loss experienced by him as a result of the restraint imposed.

The learned trial judge erred in law when he awarded an excessive sum of N5, 101, 674 {Five Million, One Hundred and One Thousand, Six Hundred and Seventy-Four Naira} to the respondent as compensation.

 

The applicant’s proposed grounds of appeal raises substantial issues of law as shown above particularly as it relates to the jurisdiction of the trial court to entertain the suit when the respondent lacks locus standi.

 

Unless this honourable court grants the instant implication, a situation of fait accompli and utter helplessness will be foisted on the court of appeal in the event that the appeal is decided in favour of the applicant.

 

It is therefore necessary for this honourable court to stay execution of its judgment pending the hearing and determination of the applicant’s appeal.

 

In support of the application is 14 paragraph affidavit dated 12th July, 2018, deposed to by Member Anne Abyem; attaching 4 marked exhibit PCM1 {Certified True Copy of Judgment}, exhibits PCM 2, 3, and 4 (Copies of the application for leave to appeal, proposed notice and grounds of appeal and the filing receipt) respectively. Accompanying the motion paper is a written address wherein counsel for the applicant framed a sole issue for determination:

 

“Whether in the circumstances of this suit, the applicant is entitled to an order of this honourable court staying execution of the judgment in this suit pending the hearing and determination of the applicant’s appeal”

 

It is the applicant’s counsel submission on the sole issue that the honourable court is statutorily empowered by virtue of Order 64 Rule 8(1) NICN Rules to grant the stay of execution of its judgment delivered in this suit on 13th June, 2018 and that it must be exercised judicially and judiciously taking into account the competing interest of parties as well as the justice of the case; that the applicant has sufficiently satisfied the conditions for the grant of the instant application on the following basis:

 

Existence of a valid appeal

 

Counsel submitted that the applicant has a valid appeal having filed the application for leave to appeal supported by a proposed notice and grounds of appeal; that also the honourable court can grant a stay pending a legal occurrence even before an appeal is filed.  He cited the case of NACB LTD v Ozoemelam (2016) LPELR-26051 (SC)

 

Arguable or Substantiated Grounds of Appeal

 

He submitted that the grounds contained in the proposed notice of appeal, exhibit PCM3 are arguable and substantial; that one of the grounds of appeal relied upon by the applicant challenges the locus standi of the respondent and therefore touches on the jurisdiction of the honourable court. He cited the case of Onuekwusi & Ors v Registered Trustees of the Christ Methodist Zion Church {2011} LPELR-2702 (SC) P.13 Para A.

 

On the need no to render the court of appeal’s judgment nugatory 

 

He posited that in the event the appeal filed by the applicant succeeds, the fruit of the judgment of the court of appeal will be rendered nugatory if the execution of the judgment of the honourable court is not stayed. He cited the case of Vaswani Trading Co v Savalakh (1972) N.S.C.C 692 at 696.

 

On Balance of Convenience

 

He submitted that the balance weighs in favour of the applicant as it will suffer more if the application is refused than if it was granted; that there is no assurance that the respondent, who has been out of employment, is buoyant and will be able to repay the judgment sum to the applicant in the event that the applicant succeeds at the court of appeal; however, the applicant is a reputable company with the financial resources to pay damages to the respondent in the event that the appeal fails.

 

He conclusively urged the honourable court to resolve the sole issue in favour of the applicant and to hold that the applicant has made out a case for the grant of a stay of execution of the judgment in this suit.

 

In opposition to the applicant’s motion paper, the Respondent filed a 15 paragraph counter affidavit deposed to by Patrick Mgbeoma. Accompanying the counter affidavit is a written address wherein counsel for the Respondent framed three (3) issues for determination:

 

Whether in the absence of a valid and competent appeal, this honourable court can conveniently grant the instant application for stay of execution.

 

 Whether in the circumstance of this case, the judgment debtor/applicant has shown special and exceptional circumstances that will entitle it to the grant of the discretionary and equitable order of this honourable court for stay of execution.

 

Whether it will not amount to speculation for this honourable court to grant the instant application on the assumption that the court of appeal will grant the judgment debtor/applicant’s application for leave to appeal at the court of appeal.

 

It is the respondent’s counsel submission on issue one that in an application for stay of execution, the judgment debtor/applicant ought to ensure that its application for leave to appeal has been heard and determined within the shortest time so as to proceed to file a valid notice of appeal, if the application was granted; that there is no pending appeal and until a notice of appeal is filed, the judgment debtor/applicant cannot be said to have an appeal. He cited the case of UBA v Taan {1993} 4 NWLR Pt. 287 page 368; that in considering an application for stay, the honourable court must not be arbitrary in its discretion and must be exercised judicially and judiciously based on the fact and circumstances of the case before it and also bearing in mind the competing rights of the parties.  He urged the honourable court to dismiss the applicant’s instant application for same is unknown to law and dead in the eyes of the law 

 

On issue two; counsel submitted that there is an onus on the applicant to show before the honourable court that it has provided sufficient material based on which the court can infer special circumstance to warrant the exercise of its discretion one way or the other but that the applicant has failed to show any special or exceptional circumstances why the honourable court should grant its application for stay of execution; that there is need for the honourable court to guide and preserve its sanctity to avoid its powers being abused by any party.

 

On an ancillary point of law before delving into issue three raised for determination, counsel submitted that if the honourable court is inclined to grant a stay of execution of the monetary judgment in the circumstances of this case irrespective of the fact that the judgment debtor/applicant has not established any special circumstance to warrant the exercise of such discretion in its favour, the honourable court is urged to grant same conditionally by ordering the applicant to pay the judgment debt into an interest yielding account pending the determination of the appeal filed by the applicant; that the law of the country has now shifted to ensure that monetary judgment is not rendered useless by the mere filing of an appeal. He cited the case of Mike Momah v Vab Petroleum Inc (2000) 2 SC 142.

 

On issue three; counsel submitted that it is trite law that a court of law should exercise its discretion not based on mere speculations and conjectures, but with unsubstantiated facts and established principle of law; that it is indeed speculative to grant the judgment debtor/applicant’s application for stay of execution on the speculative belief that the court of appeal will grant the applicant’s leave to appeal. He cited the case of Ibrahim v Shagari (1983) 2 SCNLR 176 and conclusively urged the honourable court to strike out/dismiss the application as baseless, frivolous and an abuse of court process.

 

On 15th August, 2018, the Applicant filed a Further Affidavit in support of the motion on notice dated 11th July, 2018 deposed to by Member Anne Abyem and a Reply on point of law wherein counsel to the applicant submitted that paragraphs 3, 4, 5 (iii, iv, vi, ix xi), 8, 12 and 13 of the respondent’s counter affidavit are legal arguments and contrary to section 115 of the Evidence At, 2011 and that the application ought to be stuck out by the honourable court as no special circumstance exists to warrant a departure from the evidence act as provided for in section 12 of the NICN Act.         

 

He submitted that a motion for stay of execution can be predicated on an application for leave to appeal which prima facie show good and substantial grounds of appeal, and on the issue of conditional stay, counsel submitted that the applicant is willing and ready to obtain a bank guarantee in the judgment sum as a condition for the grant of stay of execution.  

 

I have considered the application, affidavit in support and the addresses of counsel to both parties; it is my view that the following are issues for determination,

 

1. Whether paragraph 3, 4, 5(iii), (iv), (vi), (ix),(xi), 8, 12 & 13 of the counter affidavit offends the provision of the Evidence Act, 2011.

 

2. Whether on the facts or circumstances of this case, the applicant is entitled to an order of stay of execution. 

 

It is my view that paragraphs 5(iii), (iv), (ix), (xi), 8 are legal argument. The deposition is those paragraphs clearly offend the provisions of 115 of the Evidence Act 2011.  Accordingly the depositions in paras 3, 5(iii), (iv), (ix), (xi), 8 of the counter affidavit are struck out.

 

I have carefully read through the application and the arguments of counsel to the judgment debtor/applicant and the judgment creditor/respondent. In my considered view the issue for determination here is:

 

“Whether or not this Court should stay the judgment it earlier gave in this case. 

 

In summary, the facts in this application is that in the substantive suit between the parties, the Claimant/Judgment-Creditor's action claims were based on claims for unpaid salaries and allowances, gratuity, compensation for trade restriction against the  judgment debtor. On 13th June, 2018 this Court entered judgment in his favour. The judgment debtor/applicant thereafter filed a Notice of Appeal against this judgment and a motion on notice pursuant to Order 54 Rule 8(1) of the NICN Rules, praying for Stay of Execution of the said judgment pending the determination of the appeal. This was filed together with supporting affidavit and written address of counsel. The claimant/respondent also filed a counter affidavit and a written address and judgment debtor/applicant filed a further affidavit.

 

On the application for stay of execution filed by the judgment debtor/applicant pursuant to the Rules of this Court; Order 64 Rule (8)1 of the NIC civil procedure Rules, 2017 states: 

 

An application made to the Court for a stay of execution or proceedings under any judgment or decision appealed against shall be made by motion on notice supported by affidavit setting forth the grounds upon which a stay of execution or of proceedings is sought. 

 

In addition, section 47 of the National Industrial Court Act, 2006 provides that: 

 

Where permitted by this Act or any other Act of the National Assembly, an appeal to the Court of Appeal from the decision of the Court shall not operate as a stay of execution but the Court may order a stay of execution either unconditionally or upon the performance of such conditions as may be imposed in accordance with Rules of Court. 

  

The principles guiding consideration of an application for a stay of execution are stated in many authorities one of which is Okafor Vs. Nnaife 1987) LPELR -2420 (SC) at pages 614(C) - 615(D) as follows: 

 

"What principle will, and should, guide the courts in applications for a stay of execution? These principles have been reiterated in very many decisions of this court. Perhaps it may be well here to re-emphasis some of them:- 

 

The courts have an unimpeded discretion to grant or refuse a stay. In this, like in all other instances of discretion, the court is bound to exercise that discretion both judicially as well as judiciously and not erratically. 

 

A discretion to grant or refuse a stay must take into account the competing rights of the parties to justice. A discretion that is biased in favour of an applicant for a stay but does not adequately take into account the respondent's equal right to justice is a discretion that has not been judicially exercised. 

 

A winning plaintiff or party has a right to the fruits of his judgment and the courts will not make a practice at the instance of an unsuccessful litigant of depriving a successful one of the fruits of the judgment in his favour until a further appeal is determined: - see the Annot Lyle (1886)11 P.D. 114 at p. 116 C.A. per Bowen, L.J. 

 

4. An unsuccessful litigant applying for a stay must show 'specialcircumstances" or "exceptional circumstances' eloquently pleading that the balance of justice is obviously weighted in favour of a stay. 

 

5.What will constitute these "special" or "exceptional" circumstances will no doubt vary from case to case. By and large, however, this court in Vaswani Trading Company Vs. Savalakh & Company(2011) FWLR (Pt 28)2174, (1992)12 SC. 77 at p. 82 held that such circumstances will involve "a consideration of some collateral circumstances and perhaps in some cases inherent matters which may, unless the order for stay is granted, destroy the subject-matter of the proceedings or foist upon the court, especially the Court of Appeal, a situation of complete helplessness or render nugatory any order or orders of the Court of Appeal or paralyze, in one way or the other, the exercise by the litigant of his constitutional right of appeal or generally provide a situation in which whatever happens to the case, and in particular even if the appellant succeeds in the Court of Appeal, there could be no return to the status quo”. 

 

6. The onus is, therefore, on the party applying for a stay pending appeal to satisfy the court that in the peculiar circumstances of his case a refusal of a stay would be unjust and inequitable. 

 

7. The court will grant a stay where its refusal would deprive the appellant of the means of prosecuting the appeal: - Emmerson Vs. Ind. Coope & Co. (1886)55 L.J. Ch. 905. 

 

The above are some of the general rules guiding and governing the court in the exercise of its discretion to grant or refuse a stay. The above list is not, however, exhaustive. 

 

There may be other circumstances which in a particular case or type of cases may dispose a court to grant an order for stay. These circumstances may not apply generally."

 

The Supreme Court stated condition precedent for grant application for stay of execution in the case of Fatoyinbo & ors v Osadeyi & Anor [2002] 11 NWWLR (Pt. 778)384 (2002) 5 SC (pt. 11) Per Kalgo JSC held thus:

 

'' It is now well settled that the power of the courts to grant or refuse stay of execution of a judgment is discretionary but must however be exercised both judicially and judiciously and not arbitrarily. Such discretion must also take into account the competing rights of the parties to justice. In the exercise of the discretion, the courts will not make a practice of depriving a successful litigant, at the instance of an unsuccessful one, of the fruits of the judgment granted in favour of the former, until a further appeal is determined and the judgment set aside. And for an unsuccessful litigant to succeed in an application for stay of execution of judgment, he or she must show special or exceptional circumstances showing the balance of justice in his favour.'' 

 

Also in the case of Olunloyo v. Adeniran [20011] 14 NWLR (Pt. 734) 699, it was held that in order to make a circumstance special and exceptional circumstances, pleading eloquently the balance of justice and that what constitutes special circumstances may vary from case to case. It is also the law that for an application for stay of execution to succeed; there must be a valid appeal against the judgment sought to be stayed. 

 

In the instant case, is there any valid Notice of Appeal at the Court of appeal, the answer is in the negative as none was exhibited by the judgment debtor/Applicant in this application. The proposed notice of appeal (exhibit PCM 2) which he terms Notice of Appeal has no Appeal number. There is no valid appeal before me, leave not having been obtained from the court of appeal.  

 

I find and hold that the judgment debtor/applicant has failed to satisfy the Court with cogent reasons upon which the Court should exercise its discretion on her application judicially and judiciously and in such a way that after considering the competing rights of both parties, its decision will not suggest that the Court is unnecessarily depriving a successful litigant the fruit of his success in Court.

 

On the whole, I hold that the application for stay of execution of the judgment of this Court by the judgment debtor/applicant fails; it is refused and accordingly dismissed. 

 

I make no order as to cost. 

 

Ruling is entered accordingly.

 

 

 

HON. JUSTICE A.N. UBAKA

JUDGE